With respect your first question, if your products meaning plants here are having some identity, individuality and novelty compared to existing ones then definitely u can patent it as per my knowledge is concerned.

The current legal status of these issues at the European Patent Office is as follows.

(1) Are plants produced by conventional breeders' breeding processes (i.e. cross, select, etc), patentable?

According to Art. 53(b) of the European Patent Convention, plant or animal varieties or essentially biological processes for the production of plants or animals are excluded from patentability. In the past, there has been questions on what exactly is means by "essentially biological processes". This resulted in two referrals to the Enlarged Board of Appeal of the European Patent Office (G 2/07 and G 1/08) which then made the following statements.

1. A non-microbiological process for the production of plants which contains or consists of the steps of sexually crossing the whole genomes of plants and of subsequently selecting plants is in principle excluded from patentability as being "essentially biological" within the meaning of Art. 53(b) EPC.

2. Such a process does not escape the exclusion of Art. 53(b) EPC merely because it contains, as a further step or as part of any of the steps of crossing and selection, a step of a technical nature which serves to enable or assist the performance of the steps of sexually crossing the whole genomes of plants or of subsequently selecting plants.

3. If, however, such a process contains within the steps of sexually crossing and selecting an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then the process is not excluded from patentability under Art. 53(b) EPC.

4. In the context of examining whether such a process is excluded from patentability as being "essentially biological" within the meaning of Art. 53(b) EPC, it is not relevant whether a step of a technical nature is a new or known measure, whether it is trivial or a fundamental alteration of a known process, whether it does or could occur in nature or whether the essence of the invention lies in it.

Following this case law, one cannot patent plants that are produced by conventoinal breeders' breeding processes. However, one can protect such plants using the breeder's right.

Unfortunately, this is not the end of my answer, since meanwhile new questions have been referred to the Enlarged Board of Appeal in G 2/12 and G 2/13. These questions are the following.

G 2/12:

1. Can the exclusion of essentially biological processes for the production of plants in Art. 53(b) EPC have a negative effect on the allowability of a product claim directed to plants or plant material such as a fruit?

2. In particular, is a claim directed to plants or plant material other than a plant variety allowable even if the only method available at the filing date for generating the claimed subject-matter is an essentially biological process for the production of plants disclosed in the patent application?

3. Is it of relevance in the context of questions 1 and 2 that the protection conferred by the product claim encompasses the generation of the claimed product by means of an essentially biological process for the production of plants excluded as such under Art. 53(b) EPC?

G 2/13:

1. Can the exclusion of essentially biological processes for the production of plants in Art. 53(b) EPC have a negative effect on the allowability of a product claim directed to plants or plant material such as plant parts?

2. In particular:

(a) Is a product-by-process claim directed to plants or plant material other than a plant variety allowable if its process features define an essentially biological process for the production of plants?

(b) Is a claim directed to plants or plant material other than a plant variety allowable even if the only method available at the filing date for generating the claimed subject-matter is an essentially biological process for the production of plants disclosed in the patent application?

3. Is it of relevance in the context of questions 1 and 2 that the protection conferred by the product claim encompasses the generation of the claimed product by means of an essentially biological process for the production of plants excluded as such under Art. 53(b) EPC?

Hence, your question can currently not be answered completely. We will have to wait and see as to what the Enlarged Board of Appeal will decide in these matters.

(2) Does a method of diagnosis in medicine have to be of a disease condition, and does there have to be a cure available if suffering from the condition is diagnosed?

The answer to this question is simpler. For patentability, methods of diagnosis are similar regardless the technical field. Hence, it does not matter whether the method of diagnosis is in the medical field or not. Even if it is in the medical field, the diagnosis does not necessarily have to deal with a disease condition, as long as something is diagnosed. Also, a cure does not have to be available. For example, a method for diagnosing whether a certain individual suffers from ebola may be patentable, even though currently no cure exists.

There is case law on methods of diagnosis however, since Art. 53(c) EPC states that methods for treatment of the human body by surgery or therapy and diagnostic methods practised on the human body or animal body are excluded from patentability. With respect to diagnostic methods under Art. 53(c) EPC the Enlarged Board of Appeal listed the following requirements in G 1/04.

1. In order that the subject-matter of a claim relating to a diagnostic method practised on the human or animal body falls under the prohibition of Art. 52(4) EPC [now Art. 53(c)], the claim is to include the features relating to:

(i) the diagnosis for curative purposes stricto sensu representing the deductive medical or veterinary decision phase as a purely intellectual exercise,

(ii) the preceding steps which are constitutive for making that diagnosis, and

(iii) the specific interactions with the human or animal body which occur when carrying those out among these preceding steps which are of a technical nature.

2. Whether or not a method is a diagnostic method within the meaning of Art. 52(4) EPC may neither depend on the participation of a medical or veterinary practitioner, by being present or by bearing the responsibility, nor on the fact that all method steps can also, or only, be practised by medical or technical support staff, the patient himself or herself or an automated system. Moreover, no distinction is to be made in this context between essential method steps having diagnostic character and non-essential method steps lacking it.

3. In a diagnostic method under Art. 52(4) EPC, the method steps of a technical nature belonging to the preceding steps which are constitutive for making the diagnosis for curative purposes stricto sensu must satisfy the criterion "practised on the human or animal body".

4. Art. 52(4) EPC does not require a specific type and intensity of interaction with the human or animal body; a preceding step of a technical nature thus satisfies the criterion "practised on the human or animal body" if its performance implies any interaction with the human or animal body, necessitating the presence of the latter.

I hope this information is helpful to you.

Q1 - the simple answer is 'no'. I would suggest that the G2/13 re-Referral to the EBA is unlikely to change existing practice.

Q2 - no disease/ condition need be recited in a patent claim, though (I believe) whatever is being 'detected' should have a credible link to an industrial application (aka 'utility' = Article 57 EPC). The latter will, indeed, typically be a medical disease/ condition.

in response to the second half of your Q, 'no' current cure is required. 

@Martin - I just filed a response on EP-B-2430454 (i.e. question (2)) - it should be accessible on the EPO Register in a couple of days. On question (1), I filed a supplementary amicus a couple of weeks ago - already available on the EPO Register under G-2/12 and G-2/13 (the oral proceedings are on 27 October).

To everyone else - sorry if this seems too cryptic to understand, but ask and I'll tell you more.

@Martin, @Huub, and @Udaykumar - many thanks for your input. If you want to know the outcomes of either of the cases, just ask ([email protected]). I really appreciate the fact that folk on this site are prepared to comment.

Meanwhile the Enlarged Board of Appeal of the European Patent Office has decided that a product claim directed to plants or plant material are patentable, provided that they meet the substantive patentability requirements of novelty and inventive step. This applies even if the only method available for generating the plant was an essentially biological process for the production of plants, and also if the claimed product is defined in terms of such a process.